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CASE NO.:

Appeal (crl.) 702 of 2002

PETITIONER:

HEMRAJ AND ANR.

RESPONDENT:

STATE OF PUNJAB

DATE OF JUDGMENT: 09/09/2003

BENCH:

N. SANTOSH HEGDE & B.P. SINGH

JUDGMENT:

JUDGMENT

2003 Supp(3) SCR 466

The Judgment of the Court was delivered by

B.P. SINGH, J. The appellants have preferred this appeal under Section 379

of the Code of Criminal Procedure read with Section 2(a) of the Supreme

Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970 impugning

the judgment and order of the High Court for the States of Punjab & Haryana

at Chandigarh in Criminal Appeal No. 302-DBA of 1993 whereby the High Court

reversed the judgment of acquittal recorded by the Additional Sessions

Judge, Ludhiana in Sessions Case No. 92 of 1992.

The High Court has found Hem Raj, A-l, guilty of an offence under Section

302 IPC while Gian Chand, A-2 and Baldev Raj, A-3 have been found guilty

under Section 302 read with Section 34 IPC. All of them have been sentenced

to undergo life imprisonment. All the appellants have been found guilty of

the offence under Sections 323/34 and 324/34 IPC for which they have been

sentenced to six months and one year imprisonments respectively. All the

accused were also charged of the offence under Section 120 B IPC and have

been acquitted of that charge both by the trial court as well as by the

High Court. Apart from the three appellants, who have been convicted by the

High Court, the acquittal of Hans Raj, A-4 was affirmed by the High Court.

Hem Raj, A-l and Gian Chand, A-2 are the appellants in this appeal. Baldev

Raj, A-3, though convicted, has not preferred an appeal. It is not in

dispute, that Hem Raj, A-l, Baldev Raj, A-3 and Hans Raj, A-4 are brothers.

Gian Chand, A-2, is their brother-in-law being the husband of their sister.

In the occurrence giving rise to this appeal one Rajesh @ Toni is alleged

to have been killed by the appellants while PW-2, Parshotam Lal and PW-3,

Bikram @ Vicky are said to have sustained injuries.

Similarly the members of the prosecution party are also inter related.

Toni, the deceased, was the son of Ram Lal. PW-2, the informant is the son

of the brother of Ram Lal, and Rajinder is his brother. PW-3 the other eye

witness is the cousin of PW-2, being the son of his mother's sister. Ram

Lal, though an injured eye witness, and Rajinder another eye witness have

not been examined as witnesses.

The case of the prosecution is that at about 9.00 p.m. on May 1, 1989,

Parshotam Lal, PW-2, Bikram @ Vicky, PW-3, Rajesh @ Toni, deceased, Ram Lal

@ Nikku Ram, father of Rajesh @ Toni and Rajinder were standing in front of

the shop known as Bobby Cassettes located in Nali Mohalla, Ludhiana. Hem

Raj, A-l, armed with a knife, Baldev Raj, A-3, armed with a kirpan and Gian

Chand, A-2, armed with a hockey stick appeared on the scene and they

attacked Rajesh @ Toni, deceased. While Gian Chand, A-2 and Baldev Raj, A-3

caught hold of Toni, Hem Raj, A-1, stabbed Toni in his abdomen with his

knife. Gian Chand, A-2, assaulted him on his face with his hockey stick

while Baldev Raj, A-3, caused an injury on his right hand with his sword.

Toni slumped on the road whereafter his father Ram Lal and Rajinder Kumar

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(both not examined) rushed him to C.M.C. Hospital, Ludhiana. The case of

the prosecution is that after the occurrence, the accused smashed the doors

and windows of several houses in the vicinity.

The motive for the offence was that during diwali the accused used to

indulge in gambling which was opposed by the deceased Toni. That is why,

they assaulted him in the manner alleged. It was also the case of

prosecution that Hem Raj, A-l, was really behind this murder.

The further case of the prosecution is that soon after the occurrence

Bikram @ Vicky rushed to Officer Incharge of the Police Station Kotwali,

Ludhiana, namely, Sub Inspector Tek Singh, PW-6, who was then present in

front of Society Cinema on routine patrolling duty. He informed him about

the assault on Toni and informed him about Toni having been taken to C.M.C.

Hospital. When the police party reached the hospital, it found that

deceased Toni was lying dead.

The case of the prosecution is that PW-6, Tek Singh, recorded the statement

of PW-2, Parshotam Lal, in the hospital and sent the information given by

PW-2, Parshotam Lal, to the Kotwali Police Station where on its basis the

formal First Information Report was drawn up. The case of the Prosecution

is that the special report reached the Magistrate at 2.30 a.m. on May 2,

1989. PW-6 further deposed to the fact that he had held inquest over the

dead body of the deceased and thereafter sent the body for post mortem

examination. He had inspected the place of occurrence and took other steps

in the course of investigation. On interrogation, Hem Raj made a disclosure

statement pursuant to which a knife was recovered. Similarly, Baldev Raj

also made a disclosure statement leading to the recovery of a kirpan.

Dr. Inderjit Singh Kochhar, PW-1, performed post mortem examination on the

dead body of deceased Toni and from his report it appears that the

following injuries were found on the person of the deceased :

1. An abraded contusion 2" x 1/2" on the right side of nose.

2. An abrasion 2" x 1/2" on the left cheek.

3. A stab wound 1/2" x 2" in the midline of abdomen 2" above the

umbilicus. Omentun was coming out of the wound. There was a corresponding

cut on the shirt and Banian. On exploration of this injury, the wound was

going downward backward and towards right side after piercing through the

muscles. Spurring the peritoneum and anterior and posterior walls of

stomach and rupturing the right kidney and small intestines. The stomach

was ill of clotted blood mixed with food material. Peritoneal cavity was

full of blood.

4. Lacerated wound 1/3' x 1/5" on the tip of the right middle finger.

All the injuries were found to be ante mortem in nature and in the opinion

of Dr. Kochhar, death was due to shock and hemorrhage as a result of injury

No. 3, which was sufficient in the ordinary course of nature to cause

death. All the four accused were arrested in due course and put up for

trial. The prosecution examined two eye witnesses to prove its case,

namely, Parshotam Lal, PW-2, and Bikram @ Vicky, PW-3. For reasons best

known to the prosecution, the prosecution gave up two other eye witnesses

who were admittedly present when the occurrence took place, namely, Ram

Lal, father of the deceased and Rajinder Kumar. It appears that Ram Lal,

the father of the deceased was also injured in the course of the said

incident and the trial court, in its judgment, has made a comment about it.

We shall, however, refer to this fact later.

The defence of the accused was one of total denial and they alleged that

they had been falsely implicated. According to the defence, another

occurrence had taken place on the same day and at the same time in which

Anil Kumar, DW-2, had been injured by members of the prosecution party and

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he had to be admitted in the hospital with incised injuries. On the report

of Anil Kumar, DW-2, a criminal case had been registered and after

investigation Parshotam Lal, PW-2, and Inder Mohan (since deceased) put up

for trial. The defence examined Anil Kumar, who is the son of Gian Chand,

A-2, as DW-2 while it examined Dr. Amandeep Singh, DW-1, to prove the

medico legal report recording the injuries suffered by DW-2 in that other

occurrence.

The trial court on a critical scrutiny of the evidence on record came to

the conclusion that the case of the prosecution was doubtful and the eye

witnesses examined by the prosecution not worthy of credence. It recorded

several reasons for its conclusion.

The trial court held that PW-2 had attempted to improve the prosecution

case by adding new facts in the course of his deposition. Though, a charge

was framed under Section 120 B IPC, it was only in the course of his

deposition that he stated about the accused having been heard talking to

each other, behind a kiosk near Society Cinema. According to him, they were

talking about organising gambling in the mohalla during the diwali festival

and in case Toni raised objection, they would eliminate him. Hans Raj, A-4

(since acquitted) assured them that he would take the responsibility for

their defence in case they were prosecuted. Such a statement is not to be

found in the report lodged to the Police by PW-2. In fact, he admitted that

he never told Toni or even his father Ram Lal about it so that they could

be cautious. He never reported this matter to the police or to anyone else.

It further held that in the First Information given to the police, PW-2 did

not mention about any injury caused to him or to PW-3. In the course of his

deposition, he stated that he was assaulted by Gian Chand, A-2, with his

hockey stick on his left arm. It, however, appeared from a perusal from Ex.

P.J., the intimation slip prepared by the doctor, that he had two injuries

on his person, namely, a cut injury on the left fore arm (dorsal) and the

other was a blunt trauma in the abdomen.

There was considerable doubt about the time when the First Information

Report was lodged by PW-2. According to PW-2, he made his statement before

PW-6 at about 10.00 p.m. The evidence of PW-6, however, gave a different

picture. According to him he had inquired from the doctor about the fitness

of PW-2 and thereafter he recorded the statement of PW-2. The evidence on

record clearly discloses that the doctor certified PW-2 to be fit for

making a statement at 9.00 a.m. on May 2, 1989. Similarly, Bikram @ Vicky,

PW-3, was declared fit to make a statement at 10.00 a.m. on May 2, 1989. If

what was stated by PW-6 was true, then the report could not have been

lodged at about 10.00 or 10.30 in the night of May 1, 1989, but must have

been recorded sometime after 9.00 a.m. on May 2, 1989. This also created a

doubt about the special report reaching the Magistrate at 2.30 a.m. on May

2, 1989.

While, it is the case of the prosecution that PW-2 was admitted in the

hospital for two or three days, the relevant documents were not produced to

prove this fact. Moreover, according to the case of the prosecution, he was

admitted in the hospital at 10.30 p.m. on May 1, 1989, but the deposition

of PW-2 was to the effect that he was with the police near the dead body

till about mid night. He was thereafter medically examined and admitted.

If what is stated by Vicky is taken to be true, it was he, who gave the

first information to the Investigating Officer, when he immediately went

and reported the occurrence to him, while he was on patrolling duty in

front of the Society Cinema. Moreover, PW-3 did not even mention the

presence of PW-2 at the time of occurence in his statement recorded in the

course of investigation. Ram Lal, the father of the deceased, was not

examined as a witness as he was given up as unnecessary, but gave evidence

on record which disclosed that he was also injured in the occurrence and

was admitted in the C.M.C. Hospital. Similarly, Rajinder Kumar was also not

examined by the prosecution. It appeared that both of them in their

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statements recorded during the course of investigation had excluded the

presence of PW-2 at the place of occurrence and that appeared to be a

reason why they were not examined as eye witnesses. It, therefore, appeared

doubtful that PW-2 was present when the occurrence took place. There was

also considerable doubt as to whether the First Information Report was

lodged at the time and place as stated by PW-2.

The evidence adduced by the defence showed that another occurrence took

place at the same time on the same day in which Anil Kumar, DW-2, was

injured and an injury was caused to him by a sharp cutting weapon, which

was proved by production of medico legal report by Dr. Amandeep Singh. It

was also not disputed that in connection with that occurrence, PW-2 and

another had been put up for trial before the court charged under Section

324 IPC.

In view of the above findings, the trial court held that the prosecution

had failed to prove its case beyond reasonable doubt and that the accused

were entitled to acquittal. Accordingly, it acquitted all the accused

persons of the charges levelled against them.

The State of Punjab preferred an appeal against the order of acquittal. The

High Court by its judgment and order has found the appellants herein as

well as Baldev Raj, A-3, guilty, but it upheld the acquittal of Hans Raj,

A-4, against whom there was a charge of conspiracy. The appellants were

also acquitted of the charge of conspiracy. The High Court after noticing

the evidence on record and the submissions advanced by the parties, firstly

considered the correctness of the finding of the trial court as to whether

the statement Ex. PC, made by PW-2, was the First Information Report, or

whether the report earlier made by Vicky, PW-3 to PW-6 in front of Society

Cinema must be treated to be the First Information Report. The High Court

observed that the first information as to the manner in which the

occurrence had taken place was given by PW-2 and not by Vicky, PW-3, and,

therefore, the tiral court was not justified in holding that the First

Information Report was really the report made earlier by PW-3 to PW-6 as

nothing had come on record to show that Vicky, PW-3, had told PW-6 about

the manner in which the occurrence had taken place. In our view, since it

is not clear from the record as to what was the nature of information given

by PW-3 to PW-6, since the same was not recorded, it is not possible to

hold categorically that the information given by PW-3 must be treated as

the First Information Report. However, we must observe that the reasoning

of the High Court in this regard cannot be accepted as correct, namely,

that unless the manner in which the occurrence took place is stated in the

report, the same cannot be treated as a First Information Report. The law

is very clear and well settled that a report which discloses the commission

of a cognizable offence must be treated as the First Information Report

under Section 154 Cr. P.C. It does not matter whether the person lodging

the report had witnessed the commission of the offence or not, nor is it

necessary that all details should be mentioned in the report about the

manner of occurrence, the participants in the crime, the time and place of

occurrence etc. The requirement of Section 154 Cr. P.C. is only this that

the report must disclose the commission of a cognizable offence and that is

sufficient to set the investigating machinery into action. In this case,

since the report to PW-6 made by PW-3 was not recorded, and the endorsement

made by PW-6 indicates that PW-3 had told him that a quarrel had taken

place a little earlier and that Toni, injured, had been taken to the C.M.C.

Hospital, it is not possible to say in the absence of evidence on record,

as to whether the report related facts disclosing the commission of a

cognizable offence. We, however, do not attach much significance to this

aspect of the case and we shall proceed on the basis that the report made

by Parshotam Lal, PW-2, is the First Information Report.

The High Court further held that merely because PW-2 has stated before the

Police that the accused had caused injuries to Toni at the instance of Hans

Raj was no ground to brush aside the evidence of Parshotam Lal, PW-2. It

therefore, came to the conclusion that the manner of occurrence, as deposed

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to by PW-2, could not be discarded only on the ground that PW-2 had named

Hans Raj as the person at whose instance the other three accused had

committed the murder of Toni.

Having carefully considered the evidence on record, we are of the opinion

that the High Court was not justified in making the above observation. The

trial court noticed that in the First Information Report made by PW-2,

there was no mention about any conspiracy to commit the offence, though

there was a bald statement at the end of the report that Hans Raj was

behind the occurrence. In the course of his deposition, however, PW-2 made

a statement that only three days before the occurrence the accused were

heard talking to each other behind a kiosk near the Society Cinema and they

were saying that they will again organize gambling in the Mohalla during

the diwali festival and if Toni objected he will be done away with. Hans

Raj (since acquitted) took the responsibility of dealing with the

consequences that may follow. The trial court was justified in adversely

commenting on this part of the deposition of PW-2, because no such story

had been disclosed in the First Information Report. PW-2 had to admit in

the course of his cross-examination that he had not disclosed this fact to

the police when he lodged the report and the reason given by him is that he

had also come to know of this fact only after the 12th of July, 1989.

Obviously, therefore, what is stated by PW-2 was not based on his

knowledge. In case he had himself heard the conversation between the

accused while they were planning in this manner, he did not say so when he

lodged the First Information Report. This aspect of the prosecution case

must, therefore, be rejected and the courts below have rightly rejected the

case of conspiracy set up by the prosecution resulting in acquittal of Hans

Raj.

It was, then, observed by the High Court that even though Parshotam Lal,

PW-2, had not stated specifically about the injuries suffered by him in the

course of the incident, that by itself would not be a ground to discard the

testimony of PW-2 because he had stated that injuries had been caused to

other persons. In our view, the fact that PW-2 while lodging the First

Information Report did not mention about the injuries caused to him, even

though simple in nature, was certainly a relavant fact to be taken into

consideration while appreciating the evidence on record and judging the

credibility of the witness. It is difficult to believe that a person

injured in the course of the same incident would fail to mention to the

Police Officer in his report that he was also injured. Apart from this

omission, he also failed to mention that Vicky, PW-3, had also suffered

injuries. These omissions certainly reflect on the credibility of the

witness. Moreover, the High Court failed to notice that according to the

evidence produced by the prosecution itself, Ram Lal, the father of Toni,

though not examined as a witness, was also injured in the same occurrence

and was also medically examined at the C.M.C. Hospital where PWs. 2 and 3

were medically examined. The fact that injuries suffered by PWs. 2 and 3

were simple in nature is no ground to discard this omission, particularly,

when according to PW-2, he had to remain admitted in the hospital for three

days while according to PW-3 he had to remain admitted in the hospital for

about fifteen days.

The High Court then brushed aside the defence, namely, that an occurrence

took place in which Anil Kumar, DW-2, was injured. The High Court observed

that Dr. Amandeep Singh, DW-1, who was examined in defence to prove the

medico legal report, issued by Dr. Yoginder Gupta, had not himself examined

DW-2. DW-1 stated that Dr. Gupta had left the job and was not traceable.

The medico legal report disclosed that DW-2 had been admitted in the Daya

Nand Hospital, Ludhiana at 10.30 p.m. on May 1, 1989 with profusely

bleeding injury on the occipital region of the skull and the wound was 3"

in length with ragged and irregular margins. It was a fresh injury caused

by a sharp edged weapon like kirpan. D W-1 stated that he was conversant

with the hand writing of Dr. Gupta with whom he had worked and the report

which he produced before the court was in his hand writing. DW-2 also

appeared as a witness in defence and stated that on the day of occurence at

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about 9.00 p.m., when he heard some noise outside, he rushed out and found

PW-2, his brother Inder Mohan and Rajesh @ Toni present near the shop of

Bobby Cassettes. PW-2 was armed with a kirpan and Inder Mohan was armed

with a Dang. On seeing him, they caught hold of him and PW-2 dealt a kirpan

blow on the back of his head. In the meantime, 15-20 persons came from both

the sides and there was a free fight between them. He had become

unconscious and he regained consciousness only the next day in the

hospital. He had also lodged the report to the Police and PW-2 was facing

trial on a charge under Section 324 IPC. The evidence of DWs. 1 and 2

certainly discloses that an occurrence had taken place at the same place

and at the same time in which Anil Kumar, DW-2, was assaulted and according

to Anil Kumar, PW-2 as well as deceased Toni along with Inder Mohan (since

deceased) caught hold of him and assaulted him. It was also not denied by

PW-2 that he was facing a trial on the report made by Anil Kumar, DW-2. The

High Court observed that even if Anil Kumar, DW-2, sustained a simple

injury in the course of occurrence, that was not enough to throw away the

case of the prosecution. The non-explanation of the injuries on Anil Kumar,

DW-2, could not be treated as fatal to the case of the prosecution, and it

could not be said that the prosecution had failed to come out with the true

genesis of the occurrence. In our view, the High Court committed an error

in this regard as well. The case of the defence was that the occurrence had

taken place in a different manner altogether. The real occurrence that took

place was triggered by PW-2 and his companions including the deceased Toni

assaulting DW-2. When such an assault took place, members of both sides

assembled and there was a free fight in which injuries were caused on both

sides. It was not the case of the defence that the occurrence took place in

the manner alleged by the prosecution and that in that occurrence Anil

Kumar had suffered injuries which were not explained.

While on this aspect of the matter, we may notice that in the First

Information Report the motive alleged was that the accused persons used to

run a gambling den during diwali and that Toni, deceased, had prevented

them from doing so which resulted in an assault on Toni, who had suffered

injuries. It was on account of this hostility that the occurrence had taken

place. However, we find that even on this aspect of the matter, the

prosecution has not come out with the true story. The prosecution case is

belied by the documents produced by the prosecution itself. In the course

of his deposition, PW-2 stated that there was a fight at the time of diwali

last year, on account of the fact that Hem Raj, A-l, was organising a

gambling den in front of the house of Rajesh @ Toni to which they had

objected. However, the said matter was later compromised.

Ex. PD is a report lodged by PW-2 on November 9, 1988. From this report, it

appears that PW-2 along with several others reported to the police that Hem

Raj used to organise gambling in front of his own house and when he and

others requested him to stop that, he refused to do so. In the meantime,

Anil Kumar, DW-2, nephew of Hem Raj came there with others and assaulted

him. When he raised an alarm, his brother, Inder Mohan and his wife Rajni

came to the place of occurrence and they were also assaulted and the

ornaments of his sister-in-law were snatched. The female members of the

family of the accused also came there and entered the house and beat his

mother and sister. The compromise application has been marked as PD/1 and

is dated November 12, 1988. From the said application it appears that the

parties had settled the dispute with the intervention of the people of the

locality and they did not want the police to take any further action. These

Exhibits disclose that an incident took place earlier on account of Hem Raj

organizing a gambling den in front of his own house and that an occurrence

took place in which female members of the family of PW-2 were assaulted by

female members of the family of the accused. Adverting to the allegations

in the First Information Report, it is apparent, there is a false statement

therein that Toni, deceased had prevented the accused from running the

gambling den during diwali. In fact, Toni is nowhere mentioned in Ex. PD

and this fact is also admitted by PW-2 in the course of his deposition.

Moreover, the gambling den, if any, was in front of the house of Hem Raj,

but PW-2, in his deposition, stated that the gambling used to be conducted

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in front of the house of Rajesh @ Toni. He has further stated that when

they objected, an occurrence took place in which Anil Kumar, DW-2, had

caused injuries to his mother and sister. These statements appear to be

untrue because in Ex. PD the allegation was that the gambling was conducted

in front of the house of Hem Raj himself and that the assault on the female

members of the family of PW-2 was by the female members of the family of

the accused and not by Anil Kumar. Rajesh @ Toni deceased was nowhere in

the picture.

We have noticed the above facts not with a view to find whether the motive

alleged by the prosecution is true or false, since the case of the

prosecution rests on the evidence of eye witnesses. However, in assessing

the credibility of a witness, these facts can be taken into account and it

appears to us that PW-2 falsely and deliberately introduced the name of

Toni in the earlier incident that took place in the preceding year during

the diwali festival with a view to probabilise the targeting of Rajesh @

Toni by the appellants herein, otherwise there appears to be no reason why

the appellants would have chosen Toni as their target and spared PW-2. The

manner in which PW-2 has tried to improve the case of the prosecution by

introducing false facts in the course of his deposition, certainly reflects

on his credibility.

Coming back to the First Information Report, we have noticed that PW-2 had

not mentioned about the injuries caused to him or to PW-3. The High Court

observed that since they had received injuries which were not serious,

failure to state this fact was not very significant. That, however, is not

the case of the prosecution. The High Court failed to notice that in his

examination-in-chief, PW-2 proved the First Information Report and affirmed

it to be correct and stated that he had put his thumb impression on the

same after hearing and admitting the contents thereof. He also affirmed the

correctness of the same in the court. However, when questioned about his

failure to mention the injuries caused to him and PW-3, he replied that the

statement was not read over to him. This demonstrates the shifting stand of

this witness. Moreover, in the course of his deposition, he, for the first

time, introduced the story of conspiracy hatched by the accused three days

before the occurrence. The other part of his deposition which deserves

notice is that he denied that he said anything in the First Information

Report regarding breaking of doors and windows by the accused after the

occurrence. According to him, they ran away after the occurrence and he had

not noticed them doing anything. In the First Information Report, however,

he had stated that after the occurrence, the accused persons broke the

doors of many houses. These facts do indicate that PW-2 is not a reliable

witness.

We shall now consider the time when the First Information Report was

recorded. The trial court took the view that the evidence on this aspect of

the case was rather inconsistent. The High Court has set aside the said

finding relying upon the testimony of PW-6, the Investigating Officer,

after explaining away the inconsistencies. We have carefully perused the

evidence on record. According to PW-2, the First Information Report was

recorded in the hospital at about 10.00 p.m.. According to him, after

lodging of the First Information Report, the inquest was held over the dead

body of the deceased which was completed after mid night, whereafter the

statements of other witnesses such as Ram Lal and Rajinder Kumar were

recorded. He was then examined by the doctor and thereafter admitted in the

hospital for treatment. He was discharged from the hospital after three

days, and during this period he remained in the hospital. In the background

of these facts, we shall consider the evidence of the Investigating

Officer, PW-6, who stated that he recorded the statement of PW-2 in the

hospital. As to when the evidence was recorded, the evidence of PW-6 found

to be self contradictory. To begin with, he stated that on reaching the

hospital he recorded the statement of PW-2. He then stated that on May 2,

1989 he made a request to the doctors concerned as to whether PWs. 2 and 3

were fit to make a statement and vide their opinions Exhibits PF/1 and

PF/2, they were declared fit to make a statement. This was when the two

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opinions of the two doctors had been recorded at 9.00 a.m. and 10.00 a.m.

whereafter he recorded their statement. He further clarified that he did

not record any further statement of PWs. 2 and 3 thereafter. If the

evidence of PW-6 is believed, he recorded the statement of PW-2 for the

first time after 10.00 a.m. on May 2,1989. His evidence therefore casts a

considerable doubt about the First Information Report having been recorded

earlier in the night at about 10.00 or 10.30 p.m.. If this was the only

circumstance against the prosecution, we could have perhaps attributed the

statement of PW-6 to some confusion in his mind, but we find that there are

other circumstances which create a serious doubt in our mind as to the

truthfulness of the witnesses. The Investigating Officer, PW-6, has stated

that he prepared a rough site plan of the scene of occurrence at the

pointing of PW-2. PW-2, on the other hand, denies that the rough site plan

was prepared by PW-6 in his presence. He asserted that he was admitted in

the hospital at 10.30 p.m. whereafter he did not go out of the hospital

till he was discharged. It is difficult to reconcile the deposition of PWs.

2 and 6 on this aspect of the matter. Again, PW-6 has stated that he

prepared the inquest report in the presence of PW-2 and Ram Lal. The

inquest report was completed after mid night in the presence of these two

witnesses. If what PW-2 has stated is true, that after his statement was

recorded he was admitted in the hospital at 10.30 p.m., in support of which

the prosecution produced documentary evidence, it is difficult to believe

that he was present with the Police Officer till after mid night when the

inquest report was prepared.

According to PW-3 the police got him medically examined at the Hospital,

between 11 p.m. and 12 midnight. The evidence of PW-6 on the other hand is

to the effect that he did not get PW-3 admitted in the hospital or even

asked for his medical examination. The versions of these witnesses are so

inconsistent that it is difficult to find who is speaking the truth.

The counsel for the appellants rightly submitted that the occurrence had

taken place in a different manner altogether, and a false case was sought

to be concocted by the prosecution, and that is why these inconsistencies

have appeared in the evidence of the witnesses.

It was then submitted that Ram Lal, the father of the deceased was also

injured in the course of the same incident. He was also medically examined

in the same hospital and his injury statement is Ex. II which was produced

by PW-7, the Medical Superintendent, CMC & Hospital, Ludhiana. In fact, he

also produced the bed head ticket of Ram Lal. The said Ram Lal, though an

injured eye witness and father of the deceased, was not examined as a

witness in support of the case of the prosecution and was given up as

unnecessary. Similarly, Rajinder Kumar, brother of PW-2 another eye witness

was also given up as unnecessary though named in the First Information

Report.

PW-3 was confronted with his earlier statement Ex. DA, made in the course

of investigation, wherein he had not even mentioned about the presence of

PW-2 at the place of occurrence, much less about his suffering any injury.

However, in the course of his deposition, he sought to support the

prosecution case regarding the presence of PW-2 and the manner in which he

was assaulted. It is, therefore, difficult to place reliance upon PW-3.

We find the evidence on record to be very unsatisfactory and inconsistent.

It is no doubt true that an occurrence did take place at about 9.00 p.m. In

that occurrence Rajesh @ Toni was murdered. According to the prosecution,

the accused persons assaulted the prosecution party and as a result, PWs.

2, 3 and Ram Lal were injured. According to the defence, the occurrence as

alleged by the prosecution, did not take place and the occurrence took

place in a different manner altogether. The members of the prosecution

party were the aggressors and when they assaulted DW-2, people gathered

from both sides and in the melee that followed, injuries were caused to the

deceased and other prosecution witnesses. The appellants herein had no role

to play. The evidence adduced by the prosecution does not make any

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reference to the injuries sustained by DW-2 and at the same time, it is a

fact, that on the report of DW-2 relating to an occurrence which took place

at the same time and place, PW-2 is facing a trial charged of the offence

under Section 324 IPC for causing injury to DW-2. It also appears from the

evidence of PW-7 that at the time of his admission in the hospital as per

note on his bed head ticket, PW-3 had stated that he was involved in a

fight between two rival groups at Nai Mohalla. Similarly PW-2 had stated

that he was involved in a street fight near Deepak Cinema. PW-6 has stated

that Deepak Cinema is about 200 yards away from the alleged place of

occurrence. He also admitted that he did not find any blood at the place of

occurrence. In view of these facts, it is not possible to outright reject

the defence case as the High Court has done.

In this state of the evidence on record, we find that the view taken by the

trial court is also a possible reasonable view of the evidence on record.

The evidence adduced by the prosecution is rather inconsistent and creates

a serious doubt about the truthfulness of the prosecution case. Even if it

may be possible to take a different view, we cannot say that the view taken

by the trial court is not a reasonable view of the evidence on record. It

is well settled that if on the basis of the same evidence two views are

reasonably possible and the trial court takes the view in favour of the

accused, the appellate court, in an appeal against acquittal, will not be

justified in reversing the order of acquittal, unless it comes to the

conclusion that the view taken by the trial court was wholly unreasonable

or perverse and it was not possible to take the view in favour of the

accused on the basis of evidence on record.

We, therefore, allow this appeal and acquit the appellants of all the

charges levelled against them. Accused Baldev Raj has not preferred an

appeal before this Court, but we find that his case stands on the same

footing as that of the appellants herein. We, therefore, order his

acquittal as well and the said Baldev Raj shall be released forthwith, if

not required in connection with any other case. The appellants herein are

in jail. They are directed to be released forthwith unless they are

required in connection with any other case. This appeal is accordingly

allowed.